Streams

Supreme Secrecy

This week, the U.S. Supreme Court rejected an appeal of the Bush Administration's secret detention of more than a thousand people in the weeks following September 11th. The decision represented a defeat for several groups who had sued for access to information about the detainees, some of whom were charged with immigration violations, and many of whom were deported. Bob discusses the case and its implications with Lyle Denniston, Supreme Court reporter for the Boston Globe.

Transcript

BOB GARFIELD: This is On the Media from NPR. Brooke is away this week. I'm Bob Garfield. A recent decision by the United States Supreme Court not to review an appellate court ruling has for now left in place the administration's near total secrecy in the detention of terrorism suspects and their associates. The Center for National Security Studies and about two dozen other civil liberties groups, joined by several major news organizations, had gone to federal court seeking the names, addresses and information pertaining to those detained in the weeks just following 9/11. The litigants won the release of much of that information on first-amendment and freedom-of-information grounds only to lose that access in the Bush administration's successful appeal. It was that appellate decision that the high court declined to review. The Boston Globe's Lyle Denniston has been reporting on the Supreme Court for more than 40 years, and he joins me now from Washington, DC. Lyle, welcome to OTM.

LYLE DENNISTON: Thank you very much, Bob. It's a pleasure to be with you.

BOB GARFIELD:Well, give us a little lesson, please in civics and in journalism. What are the stakes here if the government can claim national security to arrest Americans and others without releasing that information to the public, and why is the press so interested in this? Why did they litigate this matter?

LYLE DENNISTON:The press is always interested in pursuing what it considers its monitoring function; that is to sit outside the governmental structure and to pay attention to how the government is using its quite awesome power, and perhaps there is no more awesome power regarding individual liberty than the power that the government claims to secretly arrest and secretly detain individuals based upon reasons that are not publicly displayed, and therefore are unaccountable. So the press sees itself as a watchdog.

BOB GARFIELD:Douglas Lee, writing for the First Amendment Center, echoed a number of editorialists when he said "As has become clear in recent weeks, the openness of our judicial system has become a casualty of the war on terror."

LYLE DENNISTON:In this case, I think the editorial writer is probably right, because one of the arguments that the government makes is what is called "the mosaic theory." This is an argument that they make to justify secrecy about who is detained, and the mosaic theory says that if we release one little item of information or maybe one or two, that will provide pieces to a mosaic that will ultimately reveal what we are doing about the terrorists. And the really unfortunate thing so far as open government is concerned about the denial of review in this case and about the lower court ruling is that it does validate the mosaic theory that justifies a great deal of secrecy.

BOB GARFIELD:I'm curious to know if you think the court is just waiting for the right case to come along so it can establish once and for all where the line is drawn between national security exigencies and the public right to know.

LYLE DENNISTON:Probably it's too much of a leap for the court to say anything as grand as the proposition that you just suggested. The court, I think, is going to take these cases incrementally. That is, one at a time. It's going to take these issues one at a time, because this is a court, Bob, institutionally that is quite cautious about the way in which it grants review and how extensive its review is. So I think we are going to be able to put together maybe in another two years, perhaps less than that, some sense about the constitutional line that the court is willing to draw or willing to tolerate however fuzzy it may be between open government and the needs of national security during the war on terrorism. But we're going to be able to do that only by putting together a series of actions by the court and say where they have fallen on a line between openness and secrecy. That won't be clear, I think, in one grand thunderclap of a judicial utterance, but mostly, if you will, our own mosaic theory of where the Supreme Court is on this really fundamental issue.

BOB GARFIELD:Well you've been covering the judiciary for almost my entire lifetime. How sanguine are you that the checks and balances will be sufficient, or put another way, aren't you terrified?

LYLE DENNISTON:As a citizen, as a senior citizen now, I am troubled by a society that has become increasingly insecure and, therefore, increasingly willing to reach for what, at least in my day, would be thought quite extravagant uses of the terrible power of government coercion, government detention and doing so under a cloak of secrecy. This is all very new for anybody who didn't live through the Second World War, for example, as I did, when we did have secrecy, and we didn't have any accountability then. I think it's important to point out that the checks that the Supreme Court imposed upon governmental powers used during World War II all came after the war was over. The situation is different now, Bob, because we don't know when, if ever, the war on terrorism will conclude, and so would there be a time when the courts in particular or members of Congress could exercise a calmer judgment, not driven by the exigencies of an ongoing situation of an immediate threat.

BOB GARFIELD: Well, Lyle, thank you very much.

LYLE DENNISTON: I'm delighted to be here, Bob. Thank you for having me.

BOB GARFIELD: Lyle Denniston reports on the Supreme Court for the Boston Globe.

copyright 2004 WNYC Radio

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